Terrorism Trials: Civilian Court

Guilty Plea in al Shabaab Case in New York

By Robert Chesney
Wednesday, June 13, 2012, 6:05 PM

[Update: Ben Weiser's coverage in the Times points out that real benefit of the plea for Ahmed of course was to avoid the firearms charge, which entailed a thirty year minimum.  Ben also confirms that Judge Castel had not yet ruled on the suppression motion, and in fact pointed out during the hearing that the opinion on that motion was currently in the form of a 60-page draft.]

I've posted previously about the prosecution of Mohamed Ibrahim Ahmed, an Eritrean citizen and resident of Sweden who went to Somalia in 2009 to train with al Shabaab and who was later arrested in Nigeria and then turned over to U.S. custody.  Today's plea involved one count of conspiring to provide material support to al Shabaab and one count of conspiring to receive military-type training from al Shabaab.  Pretty much a textbook illustration of how federal criminal law can be used against a non-citizen who can be linked to a designated foreign terrorist organization as a trainee, supporter, or member, even if not linked to any particular plot.

Interestingly, this development does mean that we will not find out how the court would have ruled on the exceptionally important suppression motion Ahmed had made: In it, Ahmed had argued that his statements to an FBI "clean team" in Nigeria were unduly tainted by an earlier non-Mirandized interrogation by U.S. officials there, and also (I think) that the statements from the non-Mirandized interrogation should be thrown out in their own right.  Unless I missed it somehow, that ruling has not yet issued, and so it seems that today's plea agreement (posted here) was negotiated in the shadow of mutual uncertainty as to how it would have turned out (please let me know if the ruling did in fact issue, of course!).  Which is interesting, for notice that the plea agreement specifies that both conspiracies--one predicated on a plan to provide material support to al Shabaab in violation of 18 USC 2339B and the other a plan to receive military training from al Shabaab in violation of 18 USC 2339D--were framed in the plea as violations of 18 USC 371 (the general federal conspiracy statute, with a max penalty of five years per count).  This makes perfect sense as to 2339D, which does not include a direct conspiracy liability provision and hence must be yoked to 371 in order to be charged as a conspiracy.  But 2339B is different; it has a built-in conspiracy charge option, with a fifteen year maximum sentence attached.  Perhaps I'm misunderstanding things here, then, but by using 371 as the hook for both counts in the plea, it does seem that the defense did in fact get a substantial concesssion...which would make a lot of sense if there was lingering concern as to how the suppression motion was going to play out.  Or perhaps it signifies nothing at all.  Who knows.

Another interesting point worth emphasizing (since Ahmed is a non-citizen and we often hear objections to bringing non-citizens into the US for prosecution based on fear that it will be impossible to remove them after they serve their sentences or are acquitted) is the language on page 6 of the plea agreement illustrating how to comprehensively ensure the person can in fact be removed upon the conclusion of a prison sentence.